United States District Court, E.D. Pennsylvania
REPORT AND RECOMMENDATION
THOMAS J. RUETER, United States Magistrate Judge.
Presently before the court is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. 2254, by a prisoner incarcerated in the State Correctional Institution in Coal Township, Pennsylvania. For the reasons that follow, it is recommended that the petition be stayed and held in abeyance until the resolution of pending related state court proceedings.
On September 15, 2014, petitioner filed a petition for a writ of habeas corpus in this court (Doc. No. 1). On that same day, petitioner also filed a Motion for Stay and Abey of Protective Petition for Writ of Habeas Corpus (" Motion for Stay, " Doc. No. 2). In the Motion for Stay, petitioner asks the court to stay and hold the instant habeas petition in abeyance pending resolution of outstanding state court proceedings. Id. The state court docket, CP-51-CR-5997-2009 (C.P. Phila.), reveals that petitioner filed a counseled petition for relief under Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons. Stat. Ann. 9541, et seq. (" PCRA") on September 10, 2014. As of the date hereof, the filing of the PCRA petition is the final docket entry in the state court docket. By letter dated December 8, 2014, respondents state that they do not oppose petitioner's Motion for Stay " because it appears that [petitioner] has filed a timely petition for collateral review in state court." (Doc. No. 10 at 1.)
The court herein recommends that petitioner's Motion for Stay (Doc. No. 2) be
In the Motion for Stay, petitioner requests that the habeas petition be stayed and held in abeyance pending resolution of the state proceedings in order to avoid running afoul of the federal one-year statute of limitations for filing habeas corpus petitions. (Motion for Stay at 2.) See 28 U.S.C. 2244(d).
Generally, a court will grant a petitioner's request for a stay and abeyance in the limited case where a petitioner has filed a mixed petition within the federal statute's one-year limitations period, to allow the petitioner to exhaust his claims in state court without risk of later being time-barred under the federal statute of limitations.
See generally Rhines v. Weber, 544 U.S. 269 (2005). A " stay and abeyance" protects a habeas petitioner who has filed a timely federal habeas petition from missing the federal statute of limitations while he satisfies the exhaustion requirements. In Heleva v. Brooks, 581 F.3d 187 (3d Cir. 2009), the Third Circuit Court of Appeals held that Rhines is not limited only to mixed petitions. The court noted that " [t]he full range of circumstances in which a habeas petitioner is eligible for stay-and-abeyance is not yet clear, " and that a petition may merit a stay " even where only unexhausted claims are at issue." Id. at 192. The court further affirmed that " we hold that good cause as described in
Rhines . . . does at least encompass more than mixed petitions." Id. at 192 n.3. The Third Circuit reiterated that the three requirements for a stay set forth in Rhines are: good cause for petitioner's failure to exhaust all claims in state court, potentially meritorious claims, and a lack of intentionally dilatory litigation tactics. Id. at 192.
The instant petition does not appear to be a mixed petition. A review of the habeas petition reveals that none of the claims raised therein have been exhausted in the state courts. In the Motion for Stay, petitioner asserts " that if the within claims are not presented NOW and preserved that they will be lost forever!" (Motion for Stay at 1 (emphasis in original).)
This court lacks the state court record to confirm without question whether the habeas petition is mixed. However, in light of holdings in Rhines and Heleva, whether or not the instant petition is mixed is not dispositive. The court will consider whether petitioner has met the requirements for a stay as stated by the Third Circuit: good cause, potentially meritorious claims, and a lack of intentionally dilatory litigation tactics.
Heleva, 581 F.3d at 192.
In the instant matter, respondents concede, and it so appears to this court, that petitioner's PCRA petition was filed in a timely manner in the state court. Petitioner protectively filed the instant habeas petition because he was aware that the federal habeas statute of limitations was about to expire. Petitioner's petition for allowance of appeal was denied by the Supreme Court of Pennsylvania on June 19, 2013. See State Court Docket, CP-51-CR-5997-2009. Petitioner's conviction became final when the time for filing a petition for a writ of certiorari in the United States Supreme Court expired. See S.Ct. R. 13;
Kapral v. United States, 166 F.3d 565, 570-71 (3d Cir. 1999) (a judgment does not become " final" until the time for seeking certiorari expires, even if defendant does not file such a petition). In the instant case, the one-year statute of limitations for filing a federal habeas petition was set to expire on or about September 16, 2014. See 28 U.S.C. 2244(d). Petitioner filed the instant habeas petition on
September 15, 2014. Given the fact that it appears that no more than one or two days would be remaining in the federal habeas statute of limitations after the state court concluded its consideration of petitioner's PCRA petition, this pro se petitioner has good cause for filing the instant habeas petition to protect against the limitations bar while exhausting his state court
remedies, and he has not engaged in intentionally dilatory litigation tactics.
This court has not reviewed the merits of petitioner's habeas claims and cannot determine whether they are potentially meritorious. However, assuming petitioner filed a timely PCRA petition, he should be permitted to pursue collateral review under the state statute. This is not a situation where the habeas case would be stayed indefinitely.
See Rhines, 544 U.S. at 277 (habeas petition should not be stayed indefinitely). ...